Firing the NLRB general counsel was unprecedented — and wrong

On inauguration day, President Biden performed an act unprecedented in the history of the presidency. He fired the general counsel of the National Labor Relations Board. Never in the 73 year history of the NLRB general counsel’s office had a general counsel been fired by the president.

Over the decades since the creation of the general counsel’s office, numerous general counsels — appointed by both Democrat and Republican presidents — have served terms which extended into the administration of a successor president of a different political party. Most recently, Obama appointee Richard Griffin served the final ten months of his term under President Trump, and demonstrated his independence in representing the NLRB in the Supreme Court, arguing a position opposed by the Trump administration.

On every such occasion in the past, the incumbent general counsel has been allowed to serve out his or her term, as required by law. Only President Truman’s requested resignation of the general counsel that he himself appointed even comes close to the current situation.

The modern general counsel‘s office was created by the 1947 Taft Hartley Act amendments to the National Labor Relations Act. The purpose was to create a general counsel independent of the five member Board, and correct the situation in which that one body served as “judge, jury and prosecutor” of persons charged with unfair labor practices. Congress also intended to insulate the general counsel from direct political pressure.

To accomplish these purposes, Congress established the general counsel as a Senate confirmed federal officer separate from the five member Board. Importantly, Congress granted the general counsel “final authority” with respect to the investigation and prosecution of unfair labor practice charges. This means that the general counsel’s decision whether to dismiss or prosecute a charge is unreviewable.

Congress also provided a statutory term of four years for confirmed general counsels, during which they would be free to exercise their final authority — again, free from political interference, such as being fired from their job.

The NLRB general counsel plays a key role in the functioning of the NLRB and the enforcement of the nation’s labor law. Unfair labor practices filed by unions, employees and employers, are investigated by the general counsel. Some of the charges are dismissed, others result in complaints being issued. Some charges arise out of relatively small matters, others arise out of major labor disputes with significant impact on workers, businesses and the economy.

With respect to all of them, the general counsel acts with final authority in deciding whether to dismiss a charge or issue a complaint. This final authority is important as it provides the parties with a degree of certainty regarding their conduct and can set the course for the more expeditious settlement of disputes. In major labor disputes where thousands of workers may be idled and real economic damage may be inflicted, it is especially critical that the general counsel exercise timely final authority.

Both “final authority” and the four-year term are intended to protect the independence and integrity of the general counsel and the timeliness of prosecutorial decisions. The firing of General Counsel Peter Robb approximately ten months shy of the completion of his four-year term ignores these essential policies and turns the general counsel into an employee at will.

As a result, final authority will be transferred to the White House, and prosecutorial decisions will be subject not simply to the law, but to direct political influence. It is not difficult to imagine that parties involved in NLRB cases will exert political pressure on the White House to order the general counsel to issue a complaint, or refrain from issuing a complaint, or withdraw a complaint, or request certain remedies, or not request certain remedies, or some other case-related action, all on pain of being fired if the request is not acceded to.

Obviously, elections have consequences, and when a sitting general counsel reaches the end of his or her term, historically a new general counsel is nominated by the president and confirmed by the Senate for a new four-year term. This indirect political control strikes the congressionally desired balance between political accountability, on the one hand, and general counsel independence and final authority, on the other.

President Biden was poorly advised to break with his predecessors. Hopefully this misstep will be corrected by the courts, or Congress, or perhaps President Biden himself. In the meantime, we must be prepared for an era of prosecutorial decisions of the general counsel being subject to direction from the White House, dictated by the loudest voices of the most powerful political actors.

Jerry Hunter, John Irving and Ronald Meisburg were NLRB general counsels who served terms lasting into a successor president’s administration.